Does a motion without notice have an obligation to be fair?
Ontario, Canada
The following excerpt is from McNeil v. Kaloustian, 2022 ONSC 118 (CanLII):
At para. 26 of Moses v. Metro Hardware, Myers J. added that a motion without notice is different than an ordinarily contested one. The one-sided format of the motion raises the moving party’s obligation of candour and requires that party to reduce the zeal with which the case is presented. As Myers J. wrote: 26 The party who moves without notice must be fair. The regular zeal that is perfectly appropriate in face of an equally zealous adversary does not apply when a party chooses to go before a judicial officer without anyone else present to keep his or her zealousness in check. [Emphasis in original.]
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